Decision Date: 07/03/95 Archive Date: 03/28/96
BOARD OF VETERANS' APPEALS
DEPARTMENT OF VETERANS AFFAIRS
WASHINGTON, DC 20420
DOCKET NO. 93-16 188 DATE JUL 03 1995
On appeal from the decision of the Department of Veterans Affairs
Regional Office in San Juan, Puerto Rico
THE ISSUES
1. Entitlement to service connection for a nervous disorder, to
include post traumatic stress disorder.
2. Entitlement to an increased evaluation for post-operative left
inguinal hernia, currently evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: American Red Cross
ATTORNEY FOR THE BOARD
Jeanne Schlegel, Associate Counsel
INTRODUCTION
The veteran served on active duty from April 1964 to April 1966.
This matter comes before the Board of Veterans' Appeals (the Board)
from a February 1992 rating determination by the Department of
Veterans Affairs (VA) Regional Office (RO), which denied service
connection for left inguinal hernia. The veteran's Notice of
Disagreement was received in May 1992, at which time the veteran
expressed that he wished to appeal the adverse determination as to
his claim for an increased evaluation for the left inguinal hernia.
In May 1982, the Board denied the veteran's claim for entitlement
to service connection for a psychiatric disorder. The Board
determined that a psychiatric disorder was neither incurred in nor
aggravated during military service. That decision is final and may
not be reopened unless new and material evidence is submitted
pursuant to 38 U.S.C.A. 5108 and 7104(b). However, the claim was
never considered under the theory of secondary service connection,
and there is some support for this theory as shown by a private
medical statement of record from J. Ramirez dated December 1981.
This evidence was before the Board at the time its decision on the
merits was made, in May 1982. As such, the issue of entitlement to
service connection for a psychiatric disorder secondary to inguinal
hernia has not been developed for appellate consideration at this
time and is referred to the RO for appropriate action.
The veteran also raised the issue of entitlement to service
connection for PTSD. This claim was denied in rating
determinations dated March 1991 and July 1992, and was appealed to
the Board in a timely manner. In a statement dated September 1990
in which the veteran was describing alleged stressful incidents
incurred during service relative to his claim of entitlement to
service connection to PTSD, the veteran claimed that he was exposed
to dioxin containing herbicide, and that consequently his
respiratory system was affected. This may be considered a separate
claim in accordance with the provisions of 38 C.F.R. 3.307 and
3.309. This claim was never addressed by the RO, has not been
developed for appellate consideration, and is referred to the RO
for appropriate action in the event that the veteran wishes to
pursue a claim of entitlement to service connection based on this
theory.
In a statement dated April 1990 the veteran asserted several claims
including a claim for an earlier effective date to 1966 for his
service connected inguinal hernia. This claim was never addressed
by the RO, has not been developed for appellate consideration, and
is referred to the RO for appropriate action, pending a
determination on the veteran's part as to whether or not he intends
to pursue this issue.
REMAND
As a threshold matter it must be determined whether or not the
veteran's claims are well-grounded under 38 U.S.C.A. 5107(a). A
well-grounded claim is a plausible claim, one which is meritorious
on its own or capable of substantiation. Murphy v. Derwinski, 1
Vet.App. 78, 81 (1990). There must be more than an allegation; the
claim must be accompanied by supporting evidence that justifies a
belief by a fair and impartial individual that the claim is
plausible. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). The
significance of presenting a well grounded claim is that such a
claim triggers the VA's chronological obligation to assist the
claimant in the developing facts pertinent to the claim.
As to the issue of entitlement to service connection for a
psychiatric disorder on a secondary basis, the Board believes that
this claim is well grounded in that it is plausible. This finding
is supported by the December 1981 private medical statement of a
psychiatrist, J. Ramirez, who diagnosed the veteran with
psychoneurotic depression secondary to a genitourinary problem.
One of the issues certified to the Board has been framed as
entitlement to service connection for a nervous disorder to include
PTSD. Under 38 C.F.R. 3.304(f), service connection for PTSD
requires medical evidence establishing a clear diagnosis of the
condition, credible supporting evidence that the claimed inservice
stressor actually occurred, and a link, established by medical
evidence, between current symptomatology and the claimed inservice
stressor.
In Zarycki v. Brown, 6 Vet.App. 91, (1993), the Court set forth
procedures for VA to follow in adjudicating claims for service
connection for PTSD. The Court concluded that the statutory and
regulatory criteria provided a framework in which the evidence
necessary to establish the occurrence of a recognizable stressor
during service to support a claim of entitlement to service
connection for PTSD will vary depending on whether or not the
veteran was "engaged in combat with the enemy." Where it is
determined, through recognized military citations, or other
supportive evidence, that the veteran was engaged in combat with
the enemy and the claimed stressors are related to such combat, the
veteran's lay testimony regarding claimed stressors must be
accepted as conclusive as to their actual occurrence and no further
development for corroborative evidence will be required, provided
that the veteran's testimony is found to be credible and
"consistent with the circumstances, conditions, or hardships of
such service." 38 U.S.C.A. 1154(b); 38 C.F.R. 3.304(d), (f); Manual
M21-1, Part VI, Para. 7.46(e), (f). If VA determines that the
veteran did not engage in combat with the enemy, or that the
veteran did engage in combat with the enemy but the claimed
stressor is not related to such combat, the veteran's lay
testimony, by itself, will not be enough to establish the
occurrence of the alleged stressor, unless it is substantiated by
service records. Id.
The Court further held that even if it is found that there was a
stressful event in service, it must still be determined whether
that stressful event was of sufficient gravity to support a
diagnosis of PTSD as required in the American Psychiatric
Association's Diagnostic and Statistical Manual of mental
Disorders. The essential feature of PTSD is "a psychologically
distressing event that is outside the range of usual human
experience." The most common traumata involve a threat to one's
life, a threat to the lives of one's friends, or seeing another
person who has recently been seriously injured or killed as the
result of an accident or physical violence. Zarycki at 98. The
Court emphasized, however, that mere service in a combat zone, in
and of itself, was insufficient to support a diagnosis of PTSD.
In West v. Brown, 7 Vet.App. 70 (1994), the Court elaborated on the
analysis in Zarycki. In West, the Court held that the sufficiency
of the stressor is a medical determination, and therefore
adjudicators may not render a determination on this point in the
absence of independent medical evidence. The Court also held in
West that a psychiatric examination for the purpose of establishing
the existence of posttraumatic stress disorder was inadequate for
rating purposes because the examiners relied, in part, on events
whose existence the Board had rejected.
For purposes of determining whether the veteran's claim for PTSD is
well grounded, it is noted that the record is replete with
treatment records for the veteran's nervous condition, and that
only a January 1991 VA outpatient record shows a diagnosis of major
depression with psychotic features and PTSD. The narrative portion
of that record does not even mention military service or stressors
and the symptoms that were noted do not support a diagnosis of
PTSD. However, for threshold purposes, that is sufficient to make
the claim well grounded. Murphy v. Derwinski, 1 Vet.App. 78
(1990); Zarycki.
The RO has taken extensive action to verify the various alleged
stressors described by the veteran relative to his PTSD claim. Of
record, is correspondence from the U.S. Army & Joint Services
Environmental Support Group which indicated that the veteran's
reported stressors were not of sufficient specificity to permit
verification. In this regard, the Board notes that it is the
veteran's responsibility to provide accurate, complete and detailed
information regarding his alleged stressors. Information such as
the date, type, and location, of the incidents; the names, numbers
and circumstances of any casualties; and the units of assignment,
must be provided so that verification is possible. The Board
notes, however, that notwithstanding the actions so far taken by
the RO, the Court has, further mandated that there must be an
express determination as to whether or not the veteran was ct
engaged in combat with the enemy." Up to this time, the RO has not
made such an express determination.
In May 1982, the Board determined that a psychiatric disorder was
neither incurred in nor aggravated during military service. 38
C.F.R. 3.303. That decision is final and may not be reopened unless
new and material evidence is submitted pursuant to 38 U.S.C.A. 5108
and 7104(b). "New" evidence is that which is not merely cumulative
of other evidence of record. "Material" evidence is that which is
relevant to and probative of the issues at hand and which must be
of sufficient weight or significance that there is a reasonable
possibility that the new evidence, when viewed in the context of
all the evidence, both new and old, would change the outcome. Cox
v. Brown, 5 Vet.App. 95, 98 (1993).
Regarding the claim for direct service connection, a review of the
record indicates that at the time that the veteran submitted his
original claim for entitlement to service connection for a nervous
condition, he mentioned a Dr. Walter Irizarry whom he claimed
treated him, "during after service." It does not appear that a
release for these records was ever completed, that a search was
ever undertaken for them, or that these records were provided by
the veteran as no records from this doctor are on file. A claim to
reopen a previously and finally denied claim which is well
grounded, gives rise to VA's duty to assist the claimant under 38
U.S.C.A. 5107, even though the claimant may not have submitted new
and material evidence which would require the Board to reopen and
readjudicate the claim. Ivey v. Derwinski, 2 Vet.App. 320 (1992);
White v. Derwinski, 1 Vet.App. 519, 521 (1991). Therefore, these
records must be requested and if available, associated with the
file in accordance with the duty to assist.
Pursuant to the veteran's claim for entitlement to an increased
evaluation for left inguinal hernia, the Board finds that claim
well grounded pursuant to 38 U.S.C.A. 5107 (West 1991) in that his
claim is capable of substantiation. Murphy v. Derwinski, 1
Vet.App. 78 (1990). This finding is based on the veteran's
evidentiary assertion that his service connected disability has
increased in severity. Proscelle v. Derwinski, 1 Vet.App. 629
(1992); King v. Brown, 5 Vet.App. 19 (1993). However, adjudication
of this claim is deferred pending the development of the service
connection issue.
The United States Court of Veterans Appeals (Court) has held that
the duty to assist includes the duty to obtain thorough and
contemporaneous VA examinations, including examinations by a
specialist when indicated, and the duty to obtain pertinent medical
records. Hyder v. Derwinski, 1 Vet.App. 221 (1991); Green v.
Derwinski, 1 Vet.App. 121 (1991); Littke v. Derwinski, 1 Vet.App.
90 (1990).
Therefore the case is remanded for the following actions:
1. The RO should provide the veteran with the necessary release,
and should obtain the records of Dr. Irizarry, if possible. The
veteran should be requested to provide any information which may
assist in obtaining these records and should be asked to provide
any copies of these records which he may possess. If any records
are obtained, the RO is requested to evaluate them under the
provisions of 38 C.F.R. 3.156 to determine whether or not these
records constitute new and material evidence to warrant reopening
of the claim for entitlement to service connection for a nervous
disorder under the theory of incurrence or aggravation in service.
2. The RO must make a specific determination, based upon the
complete record, with respect to whether the veteran was exposed to
event(s) alleged as a stressor or stressors in service, and if so,
what was the nature of the specific alleged event(s). In rendering
this determination, the attention of the RO is directed to the
cases of Zarycki and West as explained in this remand. In any
event, the RO must specifically render a finding as to whether the
appellant "engaged in combat with the enemy." The Board points out
that if the RO determines that the appellant did not "engage in
combat with the enemy," there must be service records to support
his allegations as to event or events alleged as stressors, and the
RO is not obligated to concede the existence of any such event
without support. In making this assessment, the RO should address
any credibility questions raised by the record, including any
conflicts in the veteran's accounts, absence of notations in the
service medical records, or absence of significant findings in the
postservice medical records. If the RO determines that the record
establishes the existence of an event or events alleged as a
stressor or stressors, the RO must specify what the nature of these
event(s) it has determined are established by the record.
3. The RO is also requested to schedule the veteran for a VA
psychiatric examination to determine whether or not the veteran now
has a psychiatric disorder which is causally related to the service
connected residuals of a left inguinal hernia. In this regard, the
examiner should diagnose all psychiatric disorders that are present
together with an opinion as to whether each disorder was incurred
in service, aggravated by service, or occurred secondary to the
veteran's service connected left inguinal hernia residuals. If
there is more than one psychiatric disorder which the examiner
believes is related on a secondary basis to the veteran's service
connected disability, the examiner should reconcile the diagnoses
and should specify which symptoms are associated with each of the
disorder(s). If there is no secondary relationship, this opinion
should be noted. If certain symptomatology cannot be dissociated
from one disorder or another, it should be specified.
4. If and only if the RO concedes the existence of an event or
events claimed as a stressor or stressors, the RO should arrange
for the veteran to be accorded an examination by a board of two VA
psychiatrists, if available, who have not previously examined him
to determine the nature, etiology, severity and to diagnose all
psychiatric disorders that are present. If there are different
psychiatric disorders, other than PTSD, the examiner should
reconcile the diagnoses and should specify which symptoms are
associated with each of the disorder(s). If certain symptomatology
cannot be dissociated from one disorder or another, it should be
specified. The RO must specify for the examiners the event or
events claimed as a stressor or stressors that it has determined
are established by the record and the examiners must be instructed
that only those events may be considered for the purpose of
determining whether there was exposure to a stressor in service.
If a diagnosis of PTSD is appropriate, the examiner should specify
the credible "stressor(s)" that caused the disorder and the
evidence upon which he relied to establish the existence of the
stressor(s). The examiners should also specify (1) whether each
alleged stressor found to be established for the record by the RO
was sufficient to produce post-traumatic stress disorder; (2)
whether the remaining diagnostic criteria to support the diagnosis
of post-traumatic stress disorder have been satisfied; and (3)
whether there is a link between the current symptomatology and one
or more of the in service stressors found to be established for the
record by the RO and found to be sufficient to produce post-
traumatic stress disorder by the examiners. The psychiatrists
should describe how the symptoms of any psychiatric disorder shown
to be present affect the appellant's social and industrial
capacity. All necessary special studies or tests, are to be
accomplished. The examiner should assign a numerical score based
on the Global Assessment of Functioning Scale (GAF) provided in
DSM. It is imperative that the examiner include a definition of
the numerical code assigned under DSM in order to assist the RO and
the Board to comply with the requirements of Thurber v. Brown, 5
Vet.App. 119 (1993). The examiners should integrate the previous
psychiatric findings and diagnoses with cur-rent findings to obtain
an accurate picture of the nature of the appellant's psychiatric
status. The report of examination should include the complete
rationale for all opinions expressed. The entire claims folder and
a copy of this remand must be made available to the examiner for
review in conjunction with the examination.
5. The veteran should be afforded a VA examination by a board
certified surgeon, if available, to determine the current severity
of the service-connected residuals of a left inguinal hernia. All
necessary testing and studies should be performed. The examiner is
also requested to provide an opinion, with complete rationale, as
to the impact of this disability veteran's industrial, social and
mental capabilities. It is imperative that the claims folder and
a copy of this Remand be made available to the examiner for review
in conjunction with the examination.
6. The RO should review the examination reports and determine
whether the findings comply with the requirements of this remand.
If not, the reports should be returned to the examining facility to
correct any deficiencies. Thereafter, the RO should readjudicate
the veteran's claims as stated on this title page of the decision.
7. The RO should inquire of the veteran if he intends to pursue the
issues of an earlier effective date of service connection for left
inguinal hernia and a respiratory condition due to exposure to
dioxin containing herbicide, and if so request that the veteran
complete a 1-9 stating with specificity the basis for the claim,
and in addition to provide any additional evidence pertinent to
these claims.
If the benefits sought are not granted, a supplemental statement of
the case should be issued to the appellant and his representative
and they should be provided an opportunity to respond.
Subsequently, the claims folder should be returned to the Board for
further appellate consideration, if necessary. By this action, the
Board intimates no opinion legal or factual, as to the ultimate
disposition warranted as to this specific issue.
RICHARD B. FRANK
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, 6, 108 Stat. 740, _ (1994),
permits a proceeding instituted before the Board to be assigned to
an individual member of the Board for a determination. This
proceeding has been assigned to an individual member of the Board.
Under 38 U.S.C.A. 7252 (West 1991), only a decision of the Board of
Veterans' Appeals is appealable to the United States Court of
Veterans Appeals. This remand is in the nature of a preliminary
order and does not constitute a decision of the Board on the merits
of your appeal. 38 C.F.R. 20.1100(b) (1994).